Uniplex (UK) Ltd v NHS Business Services Authority.

• Jurisdiction: European Union
• Celex Number: 62008CC0406
• ECLI: ECLI:EU:C:2009:676
• Date: 29 October 2009
• Docket Number: C-406/08
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling

OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 29 October 2009 ¹(1)

Case C‑406/08

Uniplex (UK) Ltd

v

NHS Business Services Authority

(Reference for a preliminary ruling from the High Court of Justice of England and Wales, Queen’s Bench Division, Leeds District Registry (United Kingdom))

(Public procurement – Directive 89/665/EEC – Review procedure under national law – Effective legal protection – Limitation periods – Point at which time starts running – Whether the applicant knew or ‘ought to have’ known of the breach of procurement law – Requirement that proceedings be brought ‘promptly’)

I – Introduction

1. This reference for a preliminary ruling from the High Court of Justice of England and Wales (2) gives the Court of Justice of the European Communities an opportunity to develop its case-law on the remedies available to unsuccessful tenderers in public procurement procedures.

2. It is acknowledged that the Member States may lay down appropriate limitation periods for remedies of this kind. Clarification is required, however, in particular on the question of the time from which those limitation periods may start to run: the time at which the alleged breach of procurement law occurred, or the time at which the unsuccessful tenderer knew or should have known of the breach. This problem, whose practical effects should not be underestimated, arises in the context of a provision of English law under which the period for bringing applications for review starts to run regardless of the unsuccessful tenderer’s knowledge of the breach of procurement law, and any extension of the period is at the discretion of the national court.

3. As regards the legal issues raised, the present case has certain points of contact with Case C‑456/08 Commission v Ireland, in which I also deliver my Opinion today.

II – Legal context

A – Community law

4. The Community law context of the present case is defined by Directive 89/665/EEC, (3) as amended by Directive 92/50/EEC. (4) (5)

5. Article 1 of Directive 89/665 provides as follows:

‘1. The Member States shall take the measures necessary to ensure that, as regards contract award procedures falling within the scope of Directives 71/305/EEC, 77/62/EEC, and 92/50/EEC … decisions taken by the contracting authorities may be reviewed effectively and, in particular, as rapidly as possible in accordance with the conditions set out in the following Articles and, in particular, Article 2(7) on the grounds that such decisions have infringed Community law in the field of public procurement or nation[al] rules implementing that law.

2. Member States shall ensure that there is no discrimination between undertakings claiming injury in the context of a procedure for the award of a contract as a result of the distinction made by this Directive between national rules implementing Community law and other national rules.

3. The Member States shall ensure that the review procedures are available, under detailed rules which the Member States may establish, at least to any person having or having had an interest in obtaining a particular public supply or public works contract and who has been or risks being harmed by an alleged infringement. In particular, the Member States may require that the person seeking the review must have previously notified the contracting authority of the alleged infringement and of his intention to seek review.’ (6)

6. In addition, Article 2(1) of Directive 89/665 contains the following provision:

‘The Member States shall ensure that the measures taken concerning the review procedures specified in Article 1 include provision for the powers to:

…

(b) either set aside or ensure the setting-aside of decisions taken unlawfully …

(c) award damages to persons harmed by an infringement.’

B – National law

7. For England, Wales and Northern Ireland, Directive 89/665 was transposed by Part 9 of the Public Contracts Regulations 2006 (‘the PCR 2006’), (7) Regulation 47 of which provides, in extract, as follows:

‘(1) The obligation on –

(a) a contracting authority to comply with the provisions of these Regulations, other than regulations …, and with any enforceable Community obligation in respect of a public contract, framework agreement or design contest …

…

is a duty owed to an economic operator.

…

(6) A breach of the duty owed in accordance with paragraph (1) or (2) is actionable by any economic operator which, in consequence, suffers, or risks suffering, loss or damage and those proceedings shall be brought in the High Court.

(7) Proceedings under this regulation must not be brought unless –

(a) the economic operator bringing the proceedings has informed the contracting authority or concessionaire, as the case may be, of the breach or apprehended breach of the duty owed to it in accordance with paragraph (1) or (2) by that contracting authority or concessionaire and of its intention to bring proceedings under this regulation in respect of it; and

(b) those proceedings are brought promptly and in any event within three months from the date when grounds for the bringing of the proceedings first arose unless the Court considers that there is good reason for extending the period within which proceedings may be brought.

…

(9) In proceedings under this regulation the Court does not have power to order any remedy other than an award of damages in respect of a breach of the duty owed in accordance with paragraph (1) or (2) if the contract in relation to which the breach occurred has been entered into.’

III – Facts and main proceedings

8. Uniplex (UK) Ltd (8) is a company established in the United Kingdom and an economic operator for the purposes of Directive 2004/18 and the PCR 2006. It is the sole distributor in the United Kingdom of haemostats manufactured by the Netherlands company Gelita Medical BV.

9. NHS Business Services Authority (9) is part of the public health service of the United Kingdom, the National Health Service, which is owned and operated by the State. It is a contracting authority for the purposes of Directive 2004/18 and the PCR 2006.

10. On 26 March 2007 NHS Business Services invited tenders, in a restricted procedure, for a framework agreement for the supply of haemostats to National Health Service institutions. (10) A notice to that effect was published in the Official Journal of the European Union on 28 March 2007.

11. By letter of 13 June 2007, NHS Business Services addressed an invitation to tender to five interested parties, including Uniplex. The deadline for the submission of tenders was 19 July 2007. Uniplex submitted its tender on 18 July 2007.

12. On 22 November 2007 Uniplex was informed by NHS Business Services in writing that awards had finally been made to three tenderers, but that Uniplex would not be awarded a framework agreement. The letter also set out the award criteria, the names of the successful tenderers, the evaluated score of Uniplex, and the range of the evaluated scores achieved by the successful tenderers. According to the criteria applied by NHS Business Services, Uniplex had achieved the lowest evaluated score of the five tenderers which had been invited to submit and had submitted bids. In the letter Uniplex was also informed of its right to challenge the award decision and to seek further information.

13. In reply to a separate request by Uniplex of 23 November 2007, NHS Business Services on 13 December 2007 gave details of its method of evaluation with reference to its award criteria, and also of the characteristics and relative advantages of the bids of the successful tenderers compared with the Uniplex tender.

14. On 28 January 2008 Uniplex sent NHS Business Services a letter before action alleging various breaches of the public procurement rules.

15. By letter of 11 February 2008, NHS Business Services informed Uniplex that the situation had changed. It had been found that the tender by Assut (UK) Ltd did not comply with the requirements, and B. Braun (UK) Ltd, which had been placed fourth in the evaluation of the tenders, had been included in the framework agreement instead of Assut (UK) Ltd.

16. After a further exchange of correspondence between Uniplex and NHS Business Services, in which inter alia the starting point of the period for bringing proceedings was disputed, Uniplex on 12 March 2008 commenced proceedings in the High Court, the court making the present reference. It seeks inter alia a declaration of the alleged breaches of procurement law, damages from NHS Business Services in respect of those breaches, and – if the court has jurisdiction to make such an order – an order that NHS Business Services award Uniplex a framework agreement.

17. The referring court is uncertain whether Uniplex brought its action in time and, if not, whether it should exercise its discretion to extend the period for bringing proceedings under Regulation 47(7)(b) of the PCR 2006.

IV – Order for reference and procedure before the Court

18. By order of 30 July 2008, received at the Court on 18 September 2008, the High Court stayed the proceedings before it and referred the following questions to the Court for a preliminary ruling:

Where an economic operator is challenging in national proceedings the award of a framework agreement by a contracting authority following a public procurement exercise in which he was a tenderer and which was required to be conducted in accordance with Directive 2004/18 (and applicable implementing national provisions), and is in those proceedings seeking declarations and damages for breach of applicable public procurement provisions as regards that exercise and award:

(a) is a national provision such as Regulation 47(7)(b) of the PCR 2006 which states that those proceedings are to be brought promptly and in any event within three months from the date when grounds for the bringing of the proceedings first arose, unless the court...